With A Little Help From My Friends - did the UK break the
law in order to help the US prosecute two members of the
ISIS group known as the Beatles?
To what extent has the UK violated its domestic and international legal obligations by not
seeking assurances against the death penalty?
Joel Mitchell
ANR: 576792 SNR: 2000134
July 2019 Supervisor: Dr Jan Hendrik Valgaeren
Bachelor Thesis for Tilburg University College Bachelor’s in Liberal Arts and Sciences: Major in Law
1 Abstract
This thesis seeks to ascertain the extent to which the UK has violated its domestic and international legal obligations by not seeking assurances against the death penalty in the case of Kotey and El Sheikh. This has been achieved through legal analysis of the relevant legislation and case law, with analysis of the black letter law being utilised in conjunction with teleological interpretation. The history of the case provides a framework of facts and actions to which practical analysis of the relevant law can be applied. State responsibility is established before consideration of the actions of the UK and the extent to which they contravened any obligations. The juxtaposition between the legal obligations and the political complexities of the case are then considered. This thesis finds that the UK violated both its domestic and international legal obligations by not seeking assurances in the case of Kotey and El Sheikh.
2 Abstract 2
1 Introduction 4
2 Methodology 5
3 History of the case 7
3.1 Pre-capture and detention 7
3.2 Post-capture and detention 8
3.2 Initiation of proceedings 14
4 ECHR - analysis of the relevant articles 15
4.1 Interpretation of the Convention 16
4.2 Article 2 - The Right to Life 17
4.3 Article 3 - Prohibition of Torture 18
5 Jurisdiction and State Responsibility 19
6 Did the UK breach its respective domestic and international obligations? 28
6.1 Domestic obligations 28
6.2 International Obligations 37
6 Political Complexities and Solutions 44
6.1 Original decision to accede to MLA request without assurances 46
6.2 Decision as to whether assurances should be sought ex post facto 51
7 Conclusion 54
3 1 Introduction
The ‘special relationship’ between the UK and the US has been placed under increasing scrutiny in recent years, as revelations of an extensive post-9/11 US torture program1 have led to further light being shed on the complicity of the UK in such activities.2 This meant that when the Daily Telegraph published a leaked copy of Home Secretary Sajid Javid’s letter addressed to the US Attorney General Jeff Sessions (AG),3 there were immediately questions raised about its contents. The letter revealed that the UK would be acceding to a request for Mutual Legal Assistance (MLA) in a case concerning the prosecution of two
ISIS fighters - Alexanda Kotey and Shafee El Sheikh - and that they would be doing so without seeking assurances against the death penalty.4 Such assurances would mean that the information provided by the UK could not be used in any case where the men being prosecuted may face the death penalty.5 It is felt by many that by failing to seek any assurances, the Home Secretary rendered the UK complicit in the use of the death penalty, thereby undermining the long-term position of the UK as a staunch abolitionist of the death penalty.6
1 European Center for Constitutional and Human Rights, ‘The US Torture Program - Approved at the Highest Levels’ (ecchr.eu, May 2019)
2 Ian Cobain and Ewan MacAskill, ‘True scale of UK role in torture and rendition after 9/11 revealed’ The Guardian (28 June 2018)
4 ibid [33]. 5 ibid [7].
6 Gaby Hinsliff, ‘The death penalty is an abomination – Sajid Javid must not condone it’ The Guardian (24 July 2018)
2 Methodology
The purpose of this thesis is to reach a conclusion which could have real-world application, which in turn requires the undertaking of applied research. In order to assess whether the UK broke the law in acceding to the MLA request and to what extent it violated its domestic and international legal obligations by not seeking assurances against the death penalty, it was necessary to look primarily at the relevant black letter law. In order to determine which legislation and caselaw would be relevant, those cited and considered by the High Court in the case of Kotey and El Sheikh, were used as the starting point. In order to narrow down which legislation and caselaw would be most useful, those
7 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR). 5 cited and considered by the Court were cross-referenced with various legal articles and blogs which focused on the case of Kotey and El Sheikh. These articles and blogs were discovered by searching for the names of the two men on Google in order to return journal articles and opinion pieces, as well as by searching for their names on legal databases such
Westlaw Next. Once a core of relevant legislation and caselaw had been established, it was possible to use the citations within these works to discover further relevant information. In order to find further relevant information, combinations of key terms and concepts were entered into journal databases such as Google Scholar and WorldCat Discovery.
However, there were limitations to the ability to conduct research which allowed for a decisive conclusion on the legality of the UK’s actions. This was due to the complexity of the case at hand, which deals with an unprecedented combination of facts and issues. Since the case has not reached the European Court of Human Rights (herein referred to as the ECtHR or the Court), it is not possible to determine conclusively the legality of the actions of the UK, as this can only be decided by the Court itselfs. Therefore, using the travaux préparatoires of the Court alongside extensive analysis of the Court’s caselaw, the conclusions arrived at must be hypothetical, in lieu of a ruling by the Court itself.
Despite the necessity that the conclusions arrived at be hypothetical in nature, conducting research through extensive analysis of black letter law, supplemented by journal articles, provides strong justification for the conclusions arrived at throughout this thesis.
6 3 History of the case
3.1 Pre-capture and detention
In June of 2015, the US government made a request of the UK government pursuant to the
Treaty of Mutual Legal Assistance in Criminal Matters, a bi-lateral agreement signed between the two nations in 1994.8 The request was made in relation to a US investigation into the notorious so-called Islamic State (ISIL) cell referred to as ‘The Beatles’, known as such due to their distinctive British accents, who were suspected of having participated in the executions of US citizens. Mr Graeme Biggar, the Director of National Security in the
Home Office, later described the action of the group in a witness statement:
‘This group of terrorists is associated with some of the most barbaric crimes committed during the conflict in Syria. This includes its suspected involvement in the beheading of 27 individuals, including the murders of US citizens James Foley, Steven
Sotloff and Peter Kassig, and British citizens David Haines and Alan Henning. All but one of these beheadings were filmed and posted on the internet. The nature of the deaths suffered by these men (and the ongoing kidnap of others) has brought immense anguish to their families.’9
In response to the request from the US government, in October 2015 the United
Kingdom Central Authority (UKCA) sought an assurance that ‘the death penalty will not
8 El Gizouli v SSHD (n 3) [5].
9 ibid [6]. 7 be sought or imposed, or if imposed, will not be carried out against anyone found guilty of any criminal offence arising from this investigation’.10 In seeking such an assurance, the
UKCA followed the Mutual Legal Assistance guidelines11 as informed by the Overseas
Security and Justice Assistance Human Rights (OSJA) guidance.12 Instead of such an assurance, in March 2016 the US Department of Justice provided a ‘Direct Use’ guarantee which would not allow the information received as part of the MLA to be used in any trial where the death penalty is sought. The ‘Direct Use’ guarantee does not prevent the information received through MLA being used to aid investigations, from which the secondary evidence and information obtained could be used in trials where the death penalty is being sought.13 In August 2017, referring to the ‘Direct Use’ guarantee, the
Home Office stated in a letter to the US Department of Justice, ‘It is our view that the assurance provided in respect of the death penalty falls short of that which was requested…’,14 reaffirming the stance the Home Office had taken on providing MLA where it may be used in a case seeking the death penalty.
3.2 Post-capture and detention
In mid-January 2018, American officials were notified that US-backed Syrian Kurdish forces may have captured two men believed to belong to the so-called Islamic State
10 ibid [7]. 11 Home Office, ‘Requests for Mutual Legal Assistance in Criminal Matters: Guidelines for Authorities Outside the United Kingdom’ (12th edition, 2015) 10.
12 HM Government, ‘Overseas Security and Justice Assistance - Human Rights Guidance’ (2017) 22. 13 El Gizouli v SSHD (n 3) [8].
14 ibid [9]. 8 (ISIL).15 These two men were soon identified as Alexanda Kotey and Shafee El Sheikh, two former British citizens. They were believed to be the two remaining members of the notorious ISIL cell referred to as ‘The Beatles’ and had all been British citizens, previously living in West London.16 The leader of the cell, Mohammed Emwazi - also known as
‘Jihadi John’ - was killed in an airstrike in 2015. Meanwhile the other member, Aine Davis, had been imprisoned in Turkey on terrorism charges since May 2017. The US State
Department had designated both men as terrorists in early 2017.17 The US State
Department says that Kotey ‘likely engaged in the group’s executions and exceptionally cruel torture methods, including electronic shock and waterboarding. Kotey has also acted as an ISIL recruiter and is responsible for recruiting several U.K. nationals to join the terrorist organization.’18 Regarding El Sheikh, the US State Department said that he had
‘earned a reputation for waterboarding, mock executions and crucifixions while serving as an ISIS jailer’.19 It was the policy of the US Administration at the time that foreign terrorists ought to be tried in the States from which they originate, but this proved problematic as the Crown Prosecution Service (CPS) - both in 2016 and in 2018 after their capture - decided that there was insufficient evidence to bring a case against El Sheikh20
15 Adam Goldman and Eric Schmitt, ‘2 of ISIS’ Infamous British Fighters Are Captured by Syrian Kurds’ (The New York Times)
16 Oliver Laughland and Vikram Dodd, ‘British Isis Fighters Known as “the Beatles” Captured in Syria’ The Guardian
18 ‘State Department Terrorist Designation of Alexanda Amon Kotey’ (U.S. Department of State)
20 El Gizouli v SSHD (n 3) [11]. 9 and during this period came to the same conclusion on potentially prosecuting Kotey. It is believed that since their capture, both men have remained - and continue to remain - detained by Kurdish forces in Syria.21
Following discussions in early 2018 between the then Home Secretary Amber Rudd and then US Attorney General Jeff Sessions, in which the AG referred to Kotey and El
Sheikh as ‘prisoners of war’ and that such men should be held in Guantanamo Bay,22 the
UKCA in a submission to both the Home Secretary and the Security Minister on April 16th
2018, recommended that the Home Secretary 'maintain her predecessor’s decision to accede to the request dated 19 June 2015 but subject to a full death penalty assurance’.
Security Minister Ben Wallace indicated that he agreed that the Home Secretary should accede to the request but not that it should require a full death penalty assurance.23 This view was reinforced by information provided to the Security Minister in the following days during talks on the matter at the Department of Justice. The Security Minister was informed that in placing such restrictions on the provision of MLA, the UK were damaging the chances of a US federal prosecution taking place and thereby increasing the possibility that Kotey and El Sheikh would be transferred to Guantanamo Bay, an outcome the UK wanted to avoid and for which the AG reiterated his support at a Senate hearing on April 25th, several days after the talks at the Department of Justice.24 In May 2018, the
British Ambassador in Washington was also consulted about the potential response to
21 ibid [2]; Jamie Grierson, ‘Mother of Alleged Isis Killer Loses Legal Fight against Home Office’ The Guardian (18 January 2019)
22 ibid [12]. 23 ibid [13].
24 ibid [14-15]. 10 seeking a death penalty assurance, to which he stated that it may indeed prevent the US seeking prosecution, relaying that ‘some US officials have said as much’ and that this
‘would point the way towards transfer to Guantanamo.’25
On April 30th, Sajid Javid took over the position of Home Secretary and soon spoke to the AG about the matter, who demonstrated concern at the lack of a UK prosecution, as well as suggesting the death penalty should not be causing such an issue in granting MLA and that he did not want the UK to place restrictions on the use of the material.26 This was followed by a submission from the UKCA on May 18th to ministers, in which they made the assessment that ‘...there is a serious risk (ie. real possibility) that providing assistance might directly or significantly contribute to the death penalty…’27 They also reiterated their stance that the Home Secretary should follow the actions of his predecessor and seek full assurance against the death penalty. The UKCA submission referred to the recommendation from the Foreign and Commonwealth Office which stated:
‘…[Her Majesty’s Government (HMG)] seeks a comprehensive assurance that the suspects will not be subject to the death penalty. This is critical to the consistency with which we apply HMG’s policy on Overseas Security and Justice Assistance ...Were we not to apply this practice to this case, it could undermine all future efforts to secure effective written death penalty assurances from the US authorities for future UK security and justice assistance. The exception made for the US in this case could also undermine future attempts to secure similar assurances from other countries with which we have a security
25 ibid [18]. 26 ibid [16].
27 ibid [19]. 11 relationship... particularly if it seems likely that there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US.’28
During a discussion on May 24th held within the Home Office on whether to seek assurances, the Director of National Security advised that ‘...the best chance of achieving our aim of a prosecution (and protecting the US relationship) comes from being prepared to seek no assurances on the death penalty’.29 He also went on to say that such a departure from long-standing UK policy would present a ‘legal, policy and presentational risk’ and that the Home Office should be prepared to accept no assurances but firstly should attempt to gain a voluntary ‘Direct Use’ assurance from the US Department of Justice.30
Following this discussion, the Security Minister notified other officials that his final position was to make a ‘strong recommendation’ that in this ‘exceptional case’ the Home
Office should not seek any assurances regarding the death penalty, providing that the information would be used only in a federal prosecution.31 His intention behind this was likely to rule out the use of the evidence in a military court or in any proceedings at
Guantanamo Bay. This was the conclusion reached by the Home Secretary as well,32 who in a meeting with the AG several days later, stressed that the UK would be unable to
28 ibid. 29 ibid [21].
30 ibid. 31 ibid [24].
32 ibid. 12 provide any information that may be used in a military court or a process at Guantanamo
Bay. The Director of National Security recounts that it was in this meeting that the Home
Secretary became certain that asking for such assurances would not only damage the chances of there being a US prosecution but also may potentially damage the bi-lateral relationship between the two countries. 33
The day following the meeting between the Home Secretary and the AG, the Foreign
Office advised the Foreign Secretary to urge the Home Secretary to seek full death penalty assurances. The Foreign Office recognised that not seeking any assurances would increase the possibility of a federal prosecution which in turn has the benefit of delivering justice and acting as a deterrent. However, it stated that despite this, seeking full assurances would be advisable as this would be consistent with both OSJA guidelines and responses to previous MLA requests from the US. It also noted that not seeking assurances may lead to ‘wider national security risks if the prosecution results in an execution as this could be used by radicalisers in the UK.’34 Following a letter received in June from the Home
Secretary, in which he outlined his reasons for not seeking assurances, the Foreign
Secretary responded in a letter acknowledging and agreeing with the points raised by the
Home Secretary. These points were that the risk of Kotey and El Sheikh not being prosecuted outweighed the risk of implications for the UK’s death penalty policy; the possibility that the men may be transferred to Guantanamo Bay, to which the UK had a long-standing opposition as well as; the potential strain a request for assurances may put on the relationship between the UK and the US.35
33 ibid [26]. 34 ibid [27]
35 ibid [28]-[32]. 13 On June 22nd 2018, the Home Secretary made clear his final decision in a letter sent to the AG in which he concluded:
‘We are therefore committed to assisting the US with a federal prosecution of Alexanda
Kotey and Shafee El-Sheikh, and after careful consideration I have decided to accede to your current request for mutual legal assistance...All assistance and materials will be provided on the condition that it may only be used for the purpose sought in that request, namely a federal criminal investigation or prosecution. Furthermore, I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought…’36
3.2 Initiation of proceedings
Following the letter from the Home Secretary, information including over 600 witness statements gathered by the Metropolitan police were shared with US authorities.37 On the
23rd of July 2018, the Daily Telegraph published a leaked copy of the aforementioned letter from the Home Secretary to the AG, prompting El Sheikh’s mother, Maha El Gizouli, to initiate an action against the Home Secretary.38 The Home Secretary agreed to terms requested by the claimant that ‘no further material will be provided to the US Government pursuant to any request for mutual legal assistance relating to Mr El Sheik or Mr Kotey
36 ibid [33]. 37 Grierson (n 21).
38 El Gizouli v SSHD (n 3) [35]. 14 until determination of this claim at first instance, or further order of the court, or by agreement between the parties.’39
The action brought against the Home Secretary cited five grounds upon which the claimant believed the actions of the Home Secretary to be unlawful. All five grounds of challenge were rejected by the Queen’s Bench Division of the High Court, who dismissed the case but granted the claimant permission to apply for judicial review.
It is believed that Kotey and El Sheikh continue to be detained in Syria by Kurdish forces, but with President Trump preparing to withdraw American troops from Syria,40 there is an increased risk of the men being broken out of where they are being detained.41
This has led to reports of US prosecutors undertaking preparations to transfer both men to the US in order for them to stand trial ‘in an American court that specialises in convicting traitors.’42
4 ECHR - analysis of the relevant articles
The European Convention on Human Rights was adopted in 1950, codifying the human rights obligations of the members of the Council of Europe. The Convention has been ratified by all forty-seven member states of the Council of Europe, including most notably
39 ibid.
40 Mark Landler, Helene Cooper and Eric Schmitt, ‘Trump to Withdraw U.S. Forces From Syria, Declaring “We Have Won Against ISIS”’ The New York Times (14 January 2019)
42 Dipesh Gadher and Richard Kerbaj, ‘US Prosecutors Push for Isis “Beatles” Extremists to Face Traitors’ Court’ The Sunday Times (17 February 2019)
Articles 2 and 3, which - although analysed throughout - are not done so as extensively as
Article 1.
4.1 Interpretation of the Convention
As a preface to the analysis of the relevant articles of the ECHR, it is important to note the method of interpretation employed when the Convention is considered by the European
Court of Human Rights. As the Convention is a treaty, it is subject to the Vienna
Convention on Law of Treaties 1969 (VCLT).44 The VCLT stipulates that treaties ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’.45
Taking into the consideration the emphasis placed upon the ‘object and purpose’ of the Convention and the accompanying teleological interpretation required by such an emphasis, it follows that the Convention requires a ‘dynamic or evolutive interpretation’.46
This was confirmed by the Court in Tyrer v UK,47 in which it held that the Convention is ‘a living instrument which … must be interpreted in the light of present day conditions’.48
43 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (2nd ed, Oxford University Press 2009) 2.
44 Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969) 1155 UNTS 331. 45 ibid art 31.
46 Harris, O’Boyle and Warbrick (n 43) 7. 47 Tyrer v UK (1978) 2 EHRR 1.
48 ibid [31]. 16 Furthermore, the Court also utilises the principle of effective interpretation, which is ‘the need to ensure the effective protection of the rights guaranteed’49 by the
Convention. This was applied in Artico v Italy,50 where the Court stated that ‘the
Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.51
4.2 Article 2 - The Right to Life
The right to life is the first right guaranteed by the Convention (as Article 1 deals with jurisdiction), as it is considered the most basic human right of all because ‘if one could be arbitrarily deprived of one’s right to life, all other rights would become illusory.’52 The relevant part of Article 2 - namely Section 1 - is written as follows:
'Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’
Article 2 creates both a negative obligation for states not to take life, as well as a positive obligation for them to protect the right to life.53 The notable exception to this is the second sentence in Section 1, which expressly permits the use of the death penalty where it
49 Harris, O’Boyle and Warbrick (n 43) 15. 50 Artico v Italy (1981) 3 EHRR 1.
51 ibid [33]. 52 Douwe Korff, ‘The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights’ (Council of Europe Human Rights Handbook No 8, 2006) 6.
53 Harris, O’Boyle and Warbrick (n 43) 37. 17 is provided for by law. This is because at the time the Convention was drafted, the use of the death penalty remained prevalent throughout Western Europe.54 However, since then the practice has been all but stopped within the Member States of the Council of Europe - with a partial prohibition introduced with the Sixth Protocol to the Convention that abolished the use of the death penalty during peacetime, before the Thirteenth Protocol to the Convention also abolished its usage during times of war. ‘Nonetheless, Article 2 remains the governing provision for the parties to the Convention insofar as they are not parties to the two Protocols.’55
4.3 Article 3 - Prohibition of Torture
Article 3 of the Convention reads, ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. It differs from most other articles in the Convention, insofar that it contains an absolute, unqualified guarantee of the rights it protects.56
Although this is not explicitly expressed within the article itself, ‘the characterization of the prohibitions in Article 3 as absolute has emerged from general human rights discourse and litigation’57 before the Court. This means that ‘ill-treatment within the terms of Article
3 is never permitted, even for the highest reasons of public interest’,58 with even the need to fight terrorism not justification for a breach.59
54 ibid 59.
55 ibid. 56 ibid 69.
57 Michael K Addo and Nicholas Grief, ‘Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?’ (1998) 9(3) European Journal of International Law 510, 512-513. 58 Harris, O’Boyle and Warbrick (n 43) 69.
59 Tomasi v France (1993) 15 EHRR 1 [115]. 18 ‘The case law gives an impression of shifting boundaries as regards the character and scope of the absolute nature of the prohibitions in Article 3.’60 This is due, in part, to the application of the aforementioned principles of interpretation in the judgments of the
Court. In addressing the application of Article 3, ’the Court is guided in its decision- making by such principles as 'effective protection' and 'margin of appreciation' through which relativity is injected into its thinking. Its practice under Article 3 is based not on objective criteria but on the effects of various subjective factors on the particular facts of each case, leading to decisions which can be hard to reconcile at least at first sight.’61
The apparent simplicity of Article 3 suggested by its brevity and lack of qualification 'masks the volume and variety as well as the complexity of the issues engendered by its terms’.62 As a result, later analysis of Article 3 - when applied to the case of Kotey and El Sheikh - will require ‘careful analysis of individual decisions and judgments, taking into account all relevant distinguishing factors.’63
5 Jurisdiction and State Responsibility
‘In the twenty-first century, […] the UK has emerged as a global leader in using citizenship deprivation as a counterterrorism measure’ and ‘now have at their disposal laws to strip citizenship that are arguably broader than those possessed by any other Western
60 Addo and Grief (n 57) 514.
61 ibid. 62 ibid 510.
63 ibid 524. 19 democratic State.’64 It was under these laws that both Kotey and El Sheikh were deprived of their British citizenship by the Home Secretary, namely under Section 40 of the British
Nationality Act 1981 (as amended).65 Sub-section 2 of Section 40 allows for deprivation of citizenship if the Home Secretary ‘is satisfied that deprivation is conducive to the public good’, however, such a sub-section 2 order may not be made if this would leave the person stateless. However, deprivation of citizenship is permitted regardless as to whether this would render the person stateless, providing that the person obtained citizenship through naturalisation and has either been found to have done so fraudulently or have been found to have acted ‘in a manner which is seriously prejudicial to the vital interests of the United
Kingdom’ and therefore depriving them of their citizenship would be conducive to the public good.66
Despite their protestation at having their citizenship revoked, claiming the revocation to be illegal, the Court found in the K2 case that depriving a suspected terrorist of their citizenship was lawful under the ECHR.67 However, this revocation of citizenship raises an interesting point of contention insofar that with both men no longer being British citizens and as the UK government has not attempted to contact or had any dealings with the men directly, the UK could claim to not have exercised any authority or control over the men and therefore does not incur State responsibility. This warrants further examination as claims to having - or not having - jurisdiction over or responsibility for the
64 Sangeetha Pillai and George Williams, ‘Twenty-First Century Banishment: Citizenship Stripping In Common Law Nations’ (2017) 66 International and Comparative Law Quarterly 521, 532
65 British Nationality Act 1981, s 40. 66 ibid.
67 K2 v. the United Kingdom App no 42387/13 (ECtHR, 9 March 2017). 20 men, could decide whether they should be afforded protections under the ECHR which, in turn, has an effect on the potential illegality of the decision of the Home Secretary to provide MLA.
State responsibility is the norm in international law, codified by the UN, which sets out that ‘every internationally wrongful act of a State entails the international responsibility of that State.’68 In order to establish State responsibility, there must be two factors present: ratione personae - meaning that the action ‘is attributable to the State under international law’ - and ratione materiae - which means the action ‘constitutes a breach of an international obligation of the State.’69 Regarding Kotey and El Sheik and potential State responsibility for the UK, firstly it must be assessed as to whether there is an action that can be attributed the UK. This criterion would be fulfilled by the accession by the Home
Secretary to the MLA request from the US government, as the Home Secretary is considered an organ of the State, whose conduct is therefore attributed to the State.70
Whether this action constitutes a breach of the UK’s international obligations - namely its obligations under the ECHR - poses a significantly tougher question.
The jurisdictional clause of the ECHR is contained in Article 1, stating the ECHR will apply to a person considered to be ‘within the jurisdiction’ of a State party. It contains no mention of the word ‘territory’, indicating ‘the drafters wish to extend protection under the Convention as widely as possible, thus avoiding phrasings likely to qualify the
68 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), UN Doc. A/56/83, 3 August 2001, Art. 1. 69 ibid art 2; Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press 2011) 20.
70 ibid art 4. 21 presence of persons located in the territory of States parties.’71 However, the ECtHR has regularly interpreted Article 1 as referring to territorial jurisdiction, most notably in
Banković,72 where the ECtHR ruled that ‘Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.’73 The reasoning of the Court was based on interpreting the
Convention concurrently with the VCLT74 following the ruling in Golder.75 Article 31(3)(c) of the VCLT require the Court to consider ‘any relevant rules of international law applicable in the relations between the parties’, a sentiment reflected in the ruling of the
Court in Banković, stating that ‘[t]he Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part’.76 The Banković ruling is relevant since as both Kotey and El Sheikh were captured and detained in Syria, in order for jurisdiction over the two men to be applicable to any State other than Syria, it must be established through the ‘exceptional’ circumstances of the case.
Soering v United Kingdom77 is perhaps the most influential case regarding not only who maintains jurisdictional responsibility for the two men, but also the legality of the decision by the Home Secretary - that latter of these will addressed at a later point. The
71 Karen da Costa, The Extraterritorial Application of Selected Human Rights Treaties (BRILL 2012) 95
72 Banković and Others v Belgium and Others (2007) 44 EHRR 5.
73 ibid [61]. 74 ibid [55]; Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969) 1155 UNTS 331.
75 Golder v the United Kingdom (1979) 1 EHRR 524 [29]. 76 Banković (n 44) [57].
77 Soering v United Kingdom (1989) 11 EHRR 439. 22 case was held before the ECtHR and concerned the extradition of a German national from the UK to the US, where they would face murder charges and the death penalty. In their judgment, the Court acknowledged the territorial interpretation of Art. 1 of the ECHR which would later be confirmed in Banković. The Court wanted to be clear that this would not mean universal application of the ECHR:
‘… the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention.’78
The last sentence of the above paragraph is intended to clarify that ‘only when key fundamental provisions of the Convention are at stake will Soering apply’.79 One of these key fundamental provisions of the Convention is Article 3 - the prohibition on torture. As
Soering would face the death penalty in the US, this would mean being exposed to the
‘death row phenomenon’ - a combination of factors including the extreme conditions, long waiting time and likely abuse - which the Court determined would amount to a breach of
Art. 3. The case established the Soering principle,80 as the Court stated that a party to the
Convention would breach Art. 3 if they were to extradite an individual to another State:
78 ibid [86]. 79 da Costa (n 71) 121-122.
80 ibid 119. 23 ‘… where substantial grounds have been shown for believing that the person
concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or
degrading treatment or punishment in the requesting country.’81
The Court then establishes the basis for responsibility under the Convention, stating:
‘In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.’82
It would appear that under the ratio decidendi (ratio) of the Court in Soering, State responsibility could be attributed to the UK regarding Kotey and El Sheikh. In order to assess this, it must be temporarily assumed that in the case of these two men, the Court accepts a potential violation of Art. 3, in accordance with the Soering principle. In assessing the responsibility attributable to the UK, it must also be acknowledged that Soering dealt with extradition where the sending State was a State party to the ECHR. The transfer of
Kotey and El Sheikh from Syria to the US - whether an extradition or not - clearly does not match the exact circumstances of Soering in this regard, as neither State is party to the
ECHR. However, this does not preclude responsibility for the UK.
81 Soering (n 77) [91].
82 ibid. 24 In establishing the basis for responsibility in Soering, the Court states that liability can only be ‘incurred by the extraditing Contracting State’.83 Although prima facie, this appears to rule out responsibility for the UK, the following sentence provides an alternative understanding. The Court states that the aforementioned responsibility for the
State is ‘by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment’.84 This is a description that can be applied to the actions of the UK, who in providing the 600 witness statements,85 knew that they ‘might directly or significantly contribute to the death penalty…’86
The language if the Court is somewhat ambiguous as to whether the Soering principle includes extradition as part of the ratio of the court. This is to say, does the sentence, ‘In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State’, reflect a part of a restrictive ruling which has a narrow scope dealing only with extradition proceedings. Alternatively, it could be deemed to be referring to the particular case at hand, stipulating that in Soering it is only the ‘extraditing Contracting State’ that incurs responsibility. This would mean that the reference to the ‘extraditing Contract State’ is part of the obiter dictum of the judgment. This would in turn mean that the following sentence, ‘by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment’ would form the entirety of the ratio of the Court and could therefore be applicable to Contracting States who are not an extraditing State. It is the latter, more
83 ibid.
84 ibid. 85 Grierson (n 21).
86 El Gizouli v SSHD (n 3) [19]. 25 expansive interpretation of liability which has been used by the Court itself in subsequent judgments.
In Stephens v Malta,87 the Court held that the complaints brought by the applicant under Article 5 of the ECHR did in fact engage the responsibility of Malta, despite the facts of the case being that the applicant was neither a national of Malta, nor had he ever set foot in Malta before the case was brought.88 The parties themselves did not raise the issue of admissibility but regardless, the Court addressed the issue proprio motu. In its judgment, the Court again reiterated that jurisdiction under Article 1 of the Convention was primarily territorial.89 However, in its assessment of the admissibility of the claim under Art 1, it decided that jurisdiction should be extended to Malta extra-territorially, as the ‘deprivation of liberty had its sole origin in the measures taken exclusively by the
Maltese authorities’.90
The Court arrived at the same conclusion in Vasiliciuc v Moldova,91 which dealt with the detention of a Moldovan woman in Greece following a detention order initiated in
Moldova. Despite the deprivation of liberty occurring in Greece under the control of the
Greek authorities, the Court - once again proprio motu92 - ruled that the Greek authorities were only acting in accordance with their duties to carry out the international arrest warrant which had been issued by Interpol at the request of the Moldovan authorities. The
87 Stephens v Malta App no 33740/06 (ECtHR, 21 April 2009).
88 Milanovic (n 69) 203. 89 Stephens v Malta (n 87) [46]-[49].
90 ibid [51].
91 Vasiliciuc v Moldova App no 15944/11 (ECtHR, 2 May 2017).
92 ibid [22]. 26 deprivation of liberty had therefore been instigated by Moldovan authorities and was extra-territorially attributable to them, despite the actual act taking place in Greece.93
In both these cases, the Court acted proprio motu to address the issue of admissibility of the extra-territorial application of jurisdiction under Article 1 of the
Convention. This shows that not only is extra-territorial jurisdiction an important issue to the Court, but also that it is an oft-overlooked one when it comes to the applications of parties to a case. In both cases, the Court found that the issuing of arrest warrants amounted to an exercise of jurisdiction over the applicants, regardless of where the actual violation of the Convention took place.
It is difficult to comprehend how the principles established in these cases could not be extended to the case of Kotey and El Sheikh. Although the UK did not instigate proceedings, in providing MLA they have provided an essential component needed to begin proceedings. In Stephens and Vasiliciuc, it appears that it is the key determinant in whether jurisdiction is applicable is whether the violation can attributable to an action which originated in the State in question. It would be difficult to argue that the use of the death penalty for Kotey and El Sheikh could not be attributed to the provision of MLA by the UK, especially in light of the extensive correspondence among various US and UK authorities discussing the necessity of MLA in achieving a federal prosecution, resulting in the death penalty.94 If the case of Kotey and El Sheikh were to be brought before the
ECtHR, it would be reasonable to believe that Court would further extend the scope of extra-territorial jurisdiction to include the UK in this case.
93 ibid [24-[25].
94 El Gizouli v SSHD (n 3) [18], [19], [21]. 27 Such a finding would follow the trajectory of the Court in its rulings in matters of admissibility under Article 1, as seen in Soering, Stephens, and Vasiliciuc. Furthermore, the
‘absolute and fundamental nature of the right not to be subjected to the death penalty’95 would provide the Court with a powerful incentive to extend the scope of Article 1, especially so when employed in conjunction with the aforementioned Soering principle.
This principle was created as the Court decided to extend the scope of Article 1 in order to protect the ‘absolute and fundamental’ right not to face the death penalty, a decision it would likely make again in the case of Kotey and El Sheikh.
6 Did the UK breach its respective domestic and international obligations?
It has been established that the UK could be considered to have exercised jurisdiction over
Kotey and El Sheikh. It must now be determined whether the UK acted in violation of its substantive obligations, both to its own people through adherence to its own laws, as well as to other States by being party to treaties - such as the ECHR. The three instruments from which the relevant obligations stem are: the MLA Guidelines and the OSJA guidelines, which will be read in conjunction with one another; the national laws of the UK and; the
ECHR.
6.1 Domestic obligations
Before assessing the actions of the UK, it is necessary to clarify the extent to which the concept of ‘obligation’ can be applied to the MLA guidelines and OSJA guidance. In El
Gizouli, the court decided to not to address the actions of the Home Secretary in regard to
95 Al-Saadoon and Mufdhi v the United Kingdom App No 61498/08 (ECtHR, 2 March 2010). 28 public law, instead adopting the position of the court in Akarcay,96 which stated that ‘the conduct of international affairs is a paradigm example of an area in which the courts recognise the institutional competency of the executive.’97 However, in Akarcay, the court was considering whether customary international law could impose a domestic law duty upon the UK to not recognise Northern Cyprus.98 This question of recognition is an
‘intensely political act’99 and customary international law cannot impose such a duty without contravening the ‘unequivocal constitutional principle that questions of recognition are for the executive’.100
However, the court in El Gizouli is mistaken to adopt the same position, as this is not a question of recognition, but instead one pertaining to the potential violation of
‘absolute and fundamental’ human rights. Although this issue is also politically complex, the court should not vacate their role in checking the actions of the executive, even if it has institutional competence in the area in question. This is especially important as - despite being a prerogative power - decisions on accession to MLA are subject to judicial review.101
Therefore, the court in El Gizouli should have considered the actions of the Home Secretary in relation to obligations under domestic public law.
Mr Fitzgerald - counsel for the claimant - accepted that the guidance of MLA and
96 Akarcay v Chief Constable of the West Yorkshire Police, Secretary of State for the Home Department, National Crime Agency [2017] EWHC 159 (Admin), [2017] 2 WLUK 128.
97 ibid [23]. 98 ibid.
99 ibid. 100 ibid.
101 El Gizouli v SSHD (n 3) [54]. 29 OSJA merely ‘guide the exercise of discretion’.102 The court agreed with this analysis and stated that this guidance amounted to ‘considerations to which the Home Secretary must have regard in exercising his power’,103 instead of being an obligation or a ‘hard-edged rule’.104 However, the court went on to state that the lawfulness of his decision to grant
MLA or not is ‘determined by whether he did indeed have regard to [the guidance], and having done so whether the decision is rational in public law terms.’105 This shows that the obligation of the Home Secretary is to consider the guidance and reach a conclusion upon that basis which can be deemed rational in conjunction with public law. Therefore, if the decision to provide MLA were to significantly contradict the guidance, as well as the principles of public law, then the accession to MLA could be deemed illegal and violation of the Home Secretary’s obligations.
Following the initiation of proceedings against the Home Secretary by Maha El
Gizouli, a spokesperson for the Home Office stated, ‘we are confident we have acted in full accordance of the law and within the government’s longstanding MLA policy.’106 The former part of the statement will be considered in a forthcoming section, as it is the latter part that will be addressed at this point. The MLA policy of the UK government is based upon the 12th edition of the MLA guidelines published in 2015.107 The document cites a list of possible grounds for refusal of MLA requests which, inter alia, includes possible refusal
102 ibid [50].
103 ibid [51]. 104 ibid.
105 ibid. 106 Ewen MacAskill, ‘Home Office Suspends Cooperation over US Death Penalty Threat for Isis Pair’ The Guardian (26 July 2018)
107 MLA Guidelines (n 11). 30 if ‘the execution of the request would prejudice the ordre public of the UK (this includes risk that the death penalty will be imposed for the crime under investigation)’.108 The death penalty being explicitly included as an example, emphasises the stance traditionally taken on the death penalty in British law, where opposition to the death penalty - according to
Ben Emmerson QC - has ‘hardened into a constitutional principle.’109 The UK government in the provision of MLA in these matters can be seen to have either ignored or contravened this simple guideline. However, the MLA guidelines are primarily a document containing procedural guidance about how to conduct MLA and therefore do not provide much substantive guidance.
On the other hand, the OSJA guidance does provide guidance on how to assess and act when considering the substantive facts of the case. The OSJA Guidance is described in the beginning of the document as ‘Guidance on how to ensure UK overseas security and justice assistance work meets our human rights obligations and our values.’110 Annex B of the document provides a checklist for case specific assistance and provides the forthcoming information. Stage 2 of the OSJA Guidance asks the government to identify risks that may stem from the assistance in question. Stage 2, Section C recommends considering ‘whether the assistance might directly or significantly contribute’111 to a variety of human rights risks, including the ‘use of the death penalty, both the imposition
108 ibid 15 (original emphasis).
109 Ben Emmerson, ‘Did the UK Government Do a Dirty Deal with Trump over the Isis Suspects?’ The Guardian (26 July 2018)
111 ibid 12. 31 of the death sentence and executions’,112 as well as ‘torture or CIDT (including standards of detention)’.113 Clearly the US retains the use of the death penalty and correspondence shows that the MLA assistance would significantly or directly contribute to its use, with the Home Secretary acknowledging this fact in a letter to the Foreign Secretary.114 As previously mentioned, the ECtHR ruled in Soering that the ‘death row phenomenon’ was tantamount to a breach of Article 3 of the Convention, which prohibits both torture and cruel, inhuman or degrading treatment (CIDT). Therefore, the MLA assistance provided to the US would have to be identified as significantly or directly contributing to the risk of both the death penalty and torture being used.
Stage 3 of the OSJA guidance then considers how to mitigate the risks identified in
Stage 2. There is a dedicated section within Stage 3 for the death penalty as well as for torture and CIDT.115 Regarding the death penalty, the guidance recommends seeking written assurances that the death penalty will not be used and if ‘no assurances are forthcoming or where there are strong reasons not to seek assurances’116 then the case must be automatically deemed ‘High Risk’. In his letter to the AG, the Home Secretary stated that ‘there are strong reasons for not requiring a death penalty assurance in this specific case’,117 mirroring the language used in the mitigation section concerning the death penalty found in the OSJA guidance.118 This means the case was 'High Risk’, and therefore
112 ibid (i).
113 ibid (iii).
114 El Gizouli v SSHD (n 3) [28]. 115 OSJA Guidance (n 12) 22.
116 ibid. 117 El Gizouli v SSHD (n 3) [33].
118 OSJA Guidance (n 12) 22. 32 the ministers from the Foreign and Commonwealth Office (FCO) should have been, and were, consulted in order to ascertain whether to proceed with assistance. It is apparent that the British government followed the OSJA Guidance to this extent, as the FCO provided a strongly-worded recommendation in which it deemed such assurances to be
‘critical’.119 However, the Home Secretary chose to ignore the advice provided by the FCO, proceeding to accede to the MLA request without the ‘critical’ assurances. This, in and of itself, is not a breach of the OSJA guidelines, as the Home Secretary purports in his letter to the AG to have ‘strong reasons’ to not seek assurances. These ‘strong reasons’ are alluded to in earlier communications between the Home Secretary and the Foreign Secretary, where the Home Secretary discloses his view that the risks of the death penalty and its implications are outweighed by the risk of there being no prosecution of Kotey and El
Sheikh.120 This means that, as of yet, the Home Secretary has not fallen foul of the OSJA guidelines regarding the death penalty.
However, within the mitigation stage of the OSJA Guidance, the part concerning the death penalty has a caveat. This being that ‘where the method of the death penalty could amount to torture or CIDT’, then the section below concerning the mitigation of those two risks must then be considered. The example of ‘excessive periods on death row’ as a method which would amount to torture or CIDT, is also included in parentheses. This is perhaps a nod to Soering, where - inter alia - the length of detention prior to execution was a factor in finding a violation under Art 3.121 Finding excessive waiting times in capital cases to amount to torture or CIDT can not only be found in the case history of the ECtHR,
119 El Gizouli v SSHD (n 3) [19]. 120 ibid 28.
121 Soering (n 77) [111]. 33 but within that of the UK judiciary. In Pratt and Morgan v The Attorney General for Jamaica,122 the Judicial Committee of the Privy Council ruled that ‘in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute "inhuman or degrading punishment or other treatment”.’123 The outcome of these cases should have been considered by the Home
Secretary when deciding whether not seeking assurances would be in line with the OSJA guidelines, an outcome it appears he wanted to reach with his mirroring of the language of the section pertaining to the mitigation of the death penalty. The decisions in these cases mean that the death penalty likely waiting Kotey and El Sheikh would be considered to amount to torture or CIDT under the OSJA guidelines. This is especially so given that the waiting time on death row has gradually increased almost every year since records began, and according to the latest statistics, ever since 2010 death row inmates have waited an average of 178 months - close to 15 years - or more between sentencing and execution.124
This vastly surpasses both the 6-8 years considered in Soering and the 5 year limit given in
Pratt, with both of these lengths of time considered by the respective courts to likely amount to torture or CIDT. Therefore, it would be highly likely that both the ECtHR and
UK courts would come to the same conclusion about the current waiting times in the US.
This means that although the Home Secretary may have felt he followed the OSJA
Guidance by citing ‘strong reasons’ for not seeking assurances, he had actually incorrectly identified the risk that would come from acceding to the MLA request. The request should
122 Pratt and Morgan v The Attorney General for Jamaica [1993] UKPC 1. 123 ibid [85].
124 Tracy Snell, ‘Capital Punishment, 2013 - Statistical Tables’ (NCJ 248448, Bureau of Justice Statistics 2014) 14 (Table 10). 34 have been seen as coming with a risk of directly or significantly contributing to torture or
CIDT. As such, the Home Secretary should have considered the part on ‘Torture and CIDT’ pursuant to Section 10, which states that this part should be considered when the death penalty could amount to torture or CIDT.125 Section 12 suggests seeking assurances that the detainee will not face ‘ill-treatment’ on arrest or detention. This echoes the sentiment of the opening paragraph of Section 3, which stipulates that although not all the mitigation measures may need to be employed, ‘it may be often be necessary to obtain assurances if there is a possibility of mistreatment or the imposition of the death penalty.’126 However, perhaps more pertinent is Section 11, which refers to the limitations which will be placed on UK personnel by the terms of reference for the assistance - in this case the MLA guidelines. It has been established that the MLA guidelines provide grounds for refusal of assistance where the ordre public of the UK could be prejudiced. The UK being complicit in torture as well as the death penalty could very easily be seen to prejudice the ordre public of the UK and as such, the role of the UK officials in the process would have to be minimal.
This is supported by the example given within Section 11 - which appears as though it were written with a case such as that of Kotey and El Sheikh in mind - stating that ‘in some circumstances this might stipulate that UK personnel will not supervise, instruct or otherwise provide direct support to investigations where there is a serious risk of torture/
CIDT’.127 Furthermore, in the previous section dealing with the death penalty, the guidance set out can result in a scenario where - despite the risk of the implementation of
125 OSJA Guidance (n 12) 22. 126 ibid 21.
127 ibid 22. 35 the death penalty - the UK could ‘nevertheless provide assistance’.128 Such language does not exist within the section dealing with torture and CIDT, an omission which can only be seen as explicit, especially when such language is featured in the previous section. A comparison between the sections on the death penalty and torture respectively, shows that while both require attempts to mitigate the occurrence of their respective risks, the degree of mitigation required differs substantially. The death penalty section allows for circumstances to dictate whether the assistance can move forward despite the risks, while the torture section contains no such clause allowing for assistance where there is such a risk. Although the guidance remains advisory, this should not negate the fact that strength of the wording in these sections affects whether the provision of MLA can be deemed to have been executed with consideration to the guidance.129
The accession to the the MLA request by the Home Secretary could be understood to have fulfilled the standards laid out by the court in El Gizouli. Considering the section on the death penalty still allows for the Home Secretary to accede to the request even if there is a risk of the death penalty. This is especially so given the non-binding language used in the section, stating that the FCO ‘should’ be consulted and that written assurances
‘should’ be sought.130 Therefore, providing there are rational reasons to accede to MLA accompanied by the risk of the death penalty, it would be acceptable. This appears to be the conclusion reached by the court in El Gizouli, who determined that the decision to accede to the MLA request was ‘underpinned by assessments of the UK’s relationship with
128 ibid. 129 El Gizouli v SSHD (n 3) [51].
130 OSJA Guidance (n 12) 21. 36 the US and the wider impact of the decision on bilateral relations.’131 However, if a death penalty sentence were to be deemed to amount to torture or CIDT, as it was by the ECtHR in Soering, then the actions of the Home Secretary cannot be reconciled with the wording of the OSJA guidance. Therefore, one would have to conclude that the UK did not consider the OSJA Guidance on torture when acceding to the MLA request, nor is it rational in relation to UK public law. Not only is this due to the fact that the UK is subject to the
ECHR and therefore, the ruling in Soering. It is also clear that, ‘from its very earliest days the common law of England set its face firmly against the use of torture’,132 as put forth by
Lord Bingham. He would go on to state that 'the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.’133 The case of Kotey and El Sheikh constitutes a clear of example of the UK lending themselves to the practice of torture. This - along with the aforementioned lack of consideration of the OSJA Guidance - would mean that the accession to the MLA request without seeking assurances contravened the domestic obligations of the UK.
6.2 International Obligations
Despite the Home Secretary failing to adhere to domestic obligations in this case, when considering the obligations placed upon the Home Secretary by the ECHR, the domestic obligations are made largely redundant. This is because the MLA and OSJA Guidance -
131 El Gizouli v SSHD (n 3) [53]. 132 A v SSHD [2005] UKHL 71, [2006] 2 A.C. 221 [11].
133 ibid. 37 despite being required by the Human Rights Act134 (HRA) to be drafted in accordance with the ECHR - could itself be considered to be unlawful under the Convention.
The guidance, as well as the accession to the request by the Home Secretary, could be found to be unlawful under the ECHR pursuant to the decision of the ECtHR in Al-
Sadoon and Mufdhi v the United Kingdom.135 The case concerned two Iraqi nationals who were detained by British forces in Iraq, initially as ‘security internees’136 and while being held came under suspicion of having previously killed two British servicemen.137 The case against them in this matter was brought before Basra Criminal Court, which held that the killing of the two servicemen constituted war crimes and therefore, the case should be transferred to the Iraqi High Tribunal (IHT).138 The IHT applied the Iraqi Penal Code, within which the Iraqi National Assembly had reintroduced the death penalty in August
2004 for certain crimes - such as murder and some war crimes.139
In their judgment in Al-Sadoon, the Court noted that at the time the events in question took place, the UK had ratified Protocol No. 13 of the Convention, which in its
first article ‘abolishes the death penalty in all circumstances’.140 The Court continues by stating that the protocol allows for ‘no derogation and applies in all circumstances’ and holds the status of a fundamental right as is given to Articles 2 and 3 of the Convention.141
134 Human Rights Act 1998. 135 Al-Sadoon (n 95).
136 ibid [42].
137 ibid [43]. 138 ibid [47].
139 ibid [23]. 140 ibid [117].
141 ibid [118]. 38 In previous rulings such as the one given in Soering,142 the Court has refused to find Article
3 to include a general prohibition on the death penalty, since this would nullify the wording of Article 2(1), which states, ‘No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’143 However, against the background of the ruling in
Öcalan144, the Court found that the wording of Article 2(1) does not continue to act as ‘a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty’.145 This is due to the dynamic interpretation of the
Convention established in Tyrer, where the Court decided upon whether corporal punishment was a violation of Article 3. It stated that it ‘cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.’ The same approach is followed in Al-Sadoon, with the Court noting that there has been ‘an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe’.146
Although this judgment does not entirely abolish the use of the death penalty, it creates a quasi-de facto prohibition. This is because the Court found that through the ‘actions and inactions’ of the UK, the applicants have been subjected to a ‘fear of execution’, which amounts to psychological suffering of a degree and nature that amounts to a violation of
142 Soering (n 77) [103]. 143 ECHR art 2(1).
144 Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005) [164] - [165]. 145 Al-Sadoon (n 95) [120].
146 ibid [116]. 39 Article 3 of the Convention,147 something which will consistently be present in cases where capital punishment is a possibility. The Court also reiterated the ruling of Soering,148 that if there is liability under the Convention, ‘it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment.’149 As previously noted when looking at
Soering, this rule for substantive liability under the Convention appears to fit the case of
Kotey and El Sheikh, as they face exposure to ill-treatment that contravenes the
Convention as a direct result of the action taken by the UK - something to which the UK themselves determined.150
A strong emphasis is placed upon the ‘absolute and fundamental nature of the right not to be subjected to the death penalty’151 throughout the judgment in Al-Sadoon, reflecting the development of the Court’s jurisprudence on the death penalty. From allowing the death penalty when based on national law to declaring a de facto prohibition on the practice - including aiding in its use in non-Contracting States152 - the rulings of the
Court demonstrates a clear path towards the total de cure prohibition on the death penalty.
The judgment in Al-Sadoon provides grounds to argue that the MLA agreement entered into between the UK and the US contravenes the ECHR, however this could prove merely academic if the UK does not look to provide any more assistance, as they have
147 ibid [144].
148 Soering (n 77) [91]. 149 Al-Sadoon (n 95) [124].
150 El Gizouli v SSHD (n 1) [19]. 151 Al-Sadoon (n 95) [138].
152 ibid. 40 already rendered the assistance in the form of around 600 witness statements.153 However, the application of the judgment of the Court in Al Nashiri v Poland154 could lead to practical consequences for Kotey and El Sheikh, as it established a positive obligation for
Contracting States to seek assurances that the death penalty will not be carried out when entering into agreements with other states, an obligation which even applies ex post facto, as was the case in Al Nashiri. The claimant was transported out of Poland by the CIA in
2004 and after being detained in several locations outside the US, was transferred to
Guantanamo Bay where he remained in custody at the time the case was heard by the
Court in 2014.155 Despite Al Nashiri having been out of Poland’s jurisdiction for over a decade, the Court found that Poland still retained responsibility for the transportation out of the country and that, in light of that responsibility, the Court held:
‘For the Court, compliance with their obligations under Articles 2 and 3 of the
Convention taken together with Article 1 of Protocol No. 6 to the Convention requires the
Government to seek to remove that risk as soon as possible, by seeking assurances from the US authorities that he will not be subjected to the death penalty.’156
This judgment further extends the scope of Article 3, in accordance with path taken by the
Court on the subject matter in the last several decades. When applied to the case of Kotey
153 Grierson (n 21).
154 Al Nashiri v Poland App no 28761/11 (ECtHR, 24 July 2014). 155 ‘Al Nashiri v. Poland’
156 Al Nashiri (n 154) [589]. 41 and El Sheikh, this judgment creates a positive obligation for the UK to seek assurances that these men will not face the death penalty, regardless of the fact that the UK have already acceded to the MLA request without such assurances.
This could lead to a point of contention regarding the norm conflict arising between the ECHR and the MLA treaty signed between themselves and the US. This conflict is dealt with by the Court in Al-Sadoon, in which the UK contended that ‘they were under an obligation under international law to surrender the applicants to the Iraqi authorities.’157
The UK could make a similar argument regarding the agreement to provide assistance without seeking assurances against the death penalty, as the agreement is based on an international treaty between the two States.158 In Al-Sadoon, the Court held that although the Convention must not be ‘interpreted and applied in a vacuum’, ‘the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective’.159 This mirrored the language of Soering, in which Court found that
‘the obligation under Article 3 of the Convention not to surrender a fugitive to another
State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment was held to override the United Kingdom’s obligations under the Extradition Treaty it had concluded with the United States in 1972.’160 The use of the word ‘override’ is somewhat problematic as it infers a hierarchical relationship between the Convention and other international
157 Al-Sadoon (n 95) [126].
158 El Gizouli v SSHD (n 3) [5]. 159 Al-Sadoon (n 95) [127].
160 ibid [128]. 42 instruments, such as a bilateral treaty with a non-state party. This is not the case, as there is no rigid structure of hierarchy within international law.161 The lack of hierarchy leads to norm conflicts, such as the present case where obligations under the ECHR and the bilateral treaty are equally valid. A conflict such as this requires not a legal solution, but a political one, as will be addressed in the following section. Irrespective of this slight mischaracterisation of the obligation under Article 3 given in the Soering judgment, the same conclusion as was reached in Soering was also reached by the Court in Al-Sadoon, who stated that:
'It has been accepted that a Contracting Party is responsible under Article 1 of the
Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention’.162
The Court came to the conclusion that although other international obligations should be taken into account when interpreting the Convention, a norm conflict does not necessarily prevent the Convention from being applied. They held that this especially so
161 Marko Milanovic, 'Norm Conflicts, International Humanitarian Law and Human Rights Law' [2010] 19(1) Human Rights and International Humanitarian Law, Collected Courses of the Academy of European Law 10.
162 ibid. 43 when the conflict in question pertains to an agreement which may lead to a violation of
Article 3, stating:
‘… it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants.’163
The conclusion reached in Al-Sadoon would be also be applicable to the case of
Kotey and El Sheikh, as it pertains to the potential violation of Article 3 of the Convention and therefore, the potential norm conflict between the ECHR and the MLA Treaty does not affect the Convention obligations to which the UK are subject.
6 Political Complexities and Solutions
The case concerning Alexanda Kotey and Shafee El Sheikh is not solely a legal issue. Not only does much of the applicable law contain caveats allowing for political discretion, the the case also results in potential norm conflicts which cannot be solved by legal analysis.
Instead, we must look at the political complexities of the case, how they have affected the adherence to conflicting obligations and how the solution may be of a largely political nature.
163 ibid [138]. 44 Firstly, it must be clarified that the norm conflict in question consists of the competing obligations held by the UK, namely: (1) the obligation to provide legal assistance under the MLA Treaty it entered into with the US in 1972 and; (2) the obligation to not provide assistance which will violate any of the articles of the ECHR, especially
Article 3 which prohibits torture. As previously stated, the lack of hierarchy within international law results in both these obligations being equally valid, requiring the UK to make a decision as to which obligation it will adhere and which it will contravene, a decision that is ultimately political. An example of a political resolution of such norm conflict would be the outcome of Soering, in which the UK had an non-refoulement obligation pursuant to Article 3 of the ECHR as held in the Soering decision and a bi-lateral obligation to the US pursuant to the extradition treaty signed between the two States. ‘The political solution to this conflict was that the US did not press the issue, and that it reached an accommodation with European states generally whereby it would provide assurances that a person whose extradition was being sought would not be tried for a capital offence’,164 thereby allowing the UK to follow adhere to the ECHR without significant political repercussion.
Due to the ongoing nature of the case, the norm conflict in question is one that has, in part, already been resolved by a political decision from the UK, namely the accession to the MLA request to share over 600 witness statements with US authorities. The political nature of this decision will be addressed but it must also be noted that the norm conflict remains unresolved when pertaining to any further assistance to be provided by the UK,
164 Milanovic (n 69) 243. 45 as well as in regard to seeking assurances from the US against the death penalty pursuant to Al Nashiri.165
6.1 Original decision to accede to MLA request without assurances
When a spokesperson for the Home Office stated, in reference to the accession to the MLA request, ‘we are confident we have acted in full accordance of the law and within the government’s longstanding MLA policy’, they failed to acknowledge that the decision was not really based on MLA policy or the law, but instead was a calculated political move to avoid jeopardising UK-US relations, in light of the White House being occupied by a volatile Trump administration.166 This is clearly demonstrated by the fact that assurances against the death penalty were not sought in this case, despite such assurances being sought with the previous administration167 and being consistently sought in the past as part of the application of the policy on OSJA.168 The British Ambassador in Washington stated, ‘...parts of the US machinery - notably career DOJ officials - would not be surprised if we asked for death penalty assurances. It is what they expect of us. But that doesn’t go for the senior political levels of this administration: Cabinet Secretaries like Sessions,
Mattis and Pompeo, and senior political appointees in their departments. Their reaction is likely to be something close to outrage.’169 The ‘special relationship’ between the UK and
165 Al Nashiri (n 154) [589]. 166 El Gizouli v SSHD (n 3) [26].
167 ibid [7]. 168 ibid [19].
169 ibid [17]. 46 the US has become even more crucial for the UK following the Brexit vote,170 therefore, with a lack of understanding emanating from senior levels of the White House, it’s understandable that British officials would be concerned about ‘damage to the bilateral relationship.’171 Furthermore, as Kotey and El Sheikh could not be prosecuted in the UK172 due to strict evidentiary requirements of the Code for Crown Prosecutors,173 this meant that - if there were to be no federal prosecution in the US - there was a real risk of the two men being transferred to Guantanamo Bay. The Home Secretary acknowledged that prosecution within the US ‘would be reliant on UK held evidence and without the ability to prosecute the two in the US, the US may mitigate the risk to its citizens by moving them to [Guantanamo Bay]’.174 In light of the UK’s long-standing opposition to Guantanamo
Bay, there would be a negative political impact for the UK if they were to be ‘perceived as failing to co-operate with the US’175 in a federal prosecution which would decrease the likelihood of the two men being detained in Guantanamo Bay. As a result, when considering whether to accede to the MLA request, it appears that the UK felt it had to decide which was the most politically viable option out of the following: refusing to accede to the MLA request, likely collapsing the only chance of protection and risking a backlash for condemning the men to detention in Guantanamo Bay by omission, or; acceding to the request while seeking assurances against the death penalty - whether they
170 Liam Fox, ‘Brexit Can Supercharge Britain's 'Special Relationship' with the U.S.’ Time (30 November 2018)
171 El Gizouli v SSHD (n 3) [17]. 172 ibid [11].
173 ibid; Clive Walker, ‘Foreign Terrorist Fighters and UK Counter Terrorism Laws’ (2018) 2 Asian Yearbook of Human Rights and Humanitarian Law 177, 187. 174 El Gizouli v SSHD (n 3) [28].
175 ibid [31]. 47 be full assurances or a Direct Use assurance - which may not be heeded and would risk damaging the bi-lateral relationship with the US, may still collapse the prosecution and could result in detention in Guantanamo, or finally; acceding to the request without seeking any assurances, which could put them in violation of their own domestic law, as well as the ECHR. In his letter to the AG, the Foreign Secretary made clear that he had chosen the latter approach, a decision borne out of timidity and trepidation on behalf of the British government, who with a degree more assertiveness in the face of Trump’s administration, could have arrived as a solution which would have come with great political benefit for themselves. This solution could have been arrived at if the following had been considered and utilised.
Firstly and perhaps most importantly, the UK should have continued to ask for full assurances, maintaining the position it took up in 2015 immediately following the MLA request176 as recommended by the UKCA.177 This would have been consistent with the
UK’s long-term MLA policy,178 as well as its stance on the death penalty.179 The fears that this may not be understood by the senior members of Trump’s administration were laid out by the British Ambassador in Washington, who stated, ‘At best they will think we have tin ears. At worst, they will wind the President up to complain to the PM and, potentially, to hold a grudge.’180 Despite the unpredictable nature of the current US administration, when it comes to the question whether the UK could trust any assurances made by US
176 ibid [7]. 177 ibid [13].
178 ibid [17]. 179 ibid [19].
180 ibid [17]. 48 officials, it can rely on the admissibility decision in Amhad v UK,181 in which the Court concluded the following:
‘Whatever the breadth of the executive discretion enjoyed by the President in the prosecution of the United States Government's counter-terrorism efforts, the Court is unable to accept that he, or any of his successors, would commit such a serious breach of his Government's assurances to a extradition partner such as the United Kingdom; the
United States' long-term interest in honouring its extradition commitments alone would provide sufficient dissuasion from doing so.’182
When considering the potential issues seeking assurances could raise with the
White House, it must be remembered that the accession to the MLA request without assurances would be ‘departing from HMG’s normal policy position’183 and would ‘clearly be a big step, with legal, policy and presentational risk’184 which could not only
‘undermine all future efforts to secure effective written death penalty assurances from the
US authorities for future UK security and justice assistance’,185 but also ‘undermine future attempts to secure similar assurances from other countries with which we have a security relationship... particularly if it seems likely that there is litigation which leads to the disclosure of the level of assurance. It could leave HMG open to accusations of western
181 Babar Ahmad and Others v the United Kingdom App no(s) 24027/07, 11949/08, 36742/08 (ECtHR, 6 July 2010). 182 ibid [108].
183 El Gizouli v SSHD (n 3) [21]. 184 ibid.
185 ibid [19]. 49 hypocrisy and double standards which would undermine HMG’s Death Penalty Policy globally, including in the US. ’186 Finally, it could also lead to ‘national security risks if the prosecution results in an execution as this could be used by radicalisers in the UK.’187 In light of these considerable issues, the warnings from the British Ambassador do not seem to carry enough serious implications to warrant not seeking assurances, especially as the
Ambassador would go on to say that ‘there might be some understanding’188 that the UK would be adhering to its long-term policy.
It should also be noted that the parents of those executed by ‘the Beatles’ made public their opinion on the matter in an op-ed piece they published in the New York
Times,189 in which they stated:
‘We want the world to know that we agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court. Either path would make them martyrs in the eyes of their fanatic, misled comrades in arms — the worst outcome.
186 ibid.
187 ibid [27]. 188 ibid [17].
189 Diane Foley, John Foley, Marsha Mueller, Carl Mueller, Shirley Sotloff, Arthur Sotloff, Paula Kassig and Ed Kassig, ‘Justice for Our Children, Killed by ISIS’ The New York Times (16 February 2018)
Such a heavily publicised stance against the death penalty by the parents of the victims provides both governments with strong reasons not to seek the death penalty, allowing for political point-scoring that would result from a narrative of delivering the justice that victims would have wanted. Instead, by acceding to the request without assurances, not only did the Home Secretary undermine long-standing policy and the
UK’s position against the death penalty, but in doing so, also ignored the wishes of the victims’ families.
6.2 Decision as to whether assurances should be sought ex post facto
It has been demonstrated that the Home Secretary’s decision to accede to the MLA request without seeking assurances was, at best, a problematic move could have been avoided.
Regardless, around 600 witness statements were shared with US as part of the assistance and this action cannot be undone or retracted. However, it remains within the powers of the UK to not only refuse to provide further assistance without assurances against the death penalty, but to seek such assurances irrespective of whether further assistance is requested or not. This would mean seeking assurances against the death penalty ex post facto in regards to the assistance already provided. It is imperative that the UK seeks out
190 ibid. 51 such assurances, due to the obligation placed upon it by the Court in Al Nashiri.191
However, the UK has already demonstrated that it is willing to violate its obligations under the ECHR in order to prevent jeopardising its ‘special relationship’ with the US.
Instead, it may prove more effective to consider how seeking assurances would benefit the
UK politically.
Most significantly, it would help to rescind the damage done to the UK’s role at the forefront of the fight for the abolition of the death penalty worldwide, as the decision not seek assurances is incompatible with such a stance and the previous actions of the UK itself.192 This stance is set out in the FCO publication ‘HMG Strategy for Abolition of the
Death Penalty 2010-2015’193 which proclaims:
‘Promoting human rights and democracy overseas is a priority for HMG. It is the long-standing policy of the UK to oppose the death penalty in all circumstances as a matter of principle because we consider that its use undermines human dignity, that there is no conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its imposition is irreversible and irreparable … It affects our provision of police or other justice and security assistance to countries which retain the death penalty. In countries where the assistance we offer could lead to the death penalty, the assistance we may be able to offer will be limited … It affects extradition cases – we cannot extradite someone to
191 Al Nashiri (n 154) [589]. 192 El Gizouli v SSHD (n 3) [19], [21], [27].
193 Foreign and Commonwealth Office, ‘HMG Strategy for Abolition of the Death Penalty 2010-2015’ (Human Rights and Democracy Department, October 2011)
Allan Hogarth, the head of advocacy and programmes stated that, ‘A failure to seek assurances on this case seriously jeopardises the UK’s position as a strong advocate for the abolition of the death penalty and its work encouraging others to abolish the cruel, inhuman and degrading practice.’195 Not seeking assurances would also conflict with the practice as well as the policy of the UK. For example, in 2011, the UK government banned the export of three drugs to the US because they were being used in lethal injections.196 If the UK were to not seek assurances and thereby remain complicit in the execution of two men, while simultaneously upholding a ban while prevents British pharmaceutical companies from selling drugs used in lethal injections due to the fact that this would render the UK complicit in an execution. This results in a political cognitive dissonance which cannot remain the official status quo for any significant period of time. Therefore, it remains in the best interests of the UK to seek assurances against the death penalty ex post facto, as this would this allow for the reestablishment of strong policy and practice regarding the abolition of the death penalty, as well as allowing for the resolution of the norm conflict facing them without having to contravene either of the obligations.
194 ibid 4. 195 Jamie Grierson, ‘UK government criticised over change in death penalty stance on Isis pair’ The Guardian (23 July 2018)
196 Department for Business, Innovation and Skill, ‘Government bans export of lethal injection drugs to the US’ (GOV.UK, 14 April 2011)
At the outset of this thesis, it was stated that its purpose is to address the issues raised by an ongoing case, providing a comprehensive analysis of the legality of the decision by the
Home Secretary, the practical solutions that could be implemented and consequently, the conclusions reached within it are designed to have a real-world application.
The conclusion reached through the manifold analyses present within this thesis, determine that the UK did break the law in order to help the US prosecute Kotey and El
Sheikh. State responsibility for the UK was established through the application of Article 1 of the Convention pursuant to judgement in Soering,197 especially given the expanding notion of jurisdiction following Stephens198 and Vasiliciuc.199
With state responsibility established, the UK can then be determined to have breached its domestic obligations, through misapplication of the OSJA Guidance. The
Guidance was applied with the view that the MLA would contribute to the risk of the death penalty being applied, when instead the section of OSJA on torture and CIDT should have been applied, given the ‘death row phenomenon’ ruling in Soering, a decision supported in domestic law by Pratt.200 Therefore, as Kotey and El Sheikh would face the death penalty and thereby time on death row, the decision by the Home Secretary is irreconcilable with the OSJA Guidance as well as established common law.201
197 Soering (n 77). 198 Stephens v Malta (n 87).
199 Vasiliciuc v Moldova (n 91). 200 Pratt (n 122).
201 A v SSHD (n 132) [11]. 54 It was also shown that the UK violated its international obligations under the
ECHR. Through the use of evolutive interpretation of the Convention, the judgment in Al-
Sadoon202 established that the psychological suffering associated with the death penalty constituted a violation of Article 3, creating a de facto prohibition on the death penalty.
Aiding in the prosecution of Kotey and El Sheikh without seeking assurances against the death penalty would mean the UK could be complicit in the psychological suffering of the two men, which in turn would constitute a violation of Article 3. The ruling in Al Nashiri203 demonstrated that the UK has an obligation under the ECHR to seek assurances against the death penalty, despite the fact it has already provided MLA without seeking such assurances.
It was established that there was a norm conflict between the obligations pursuant to the ECHR and the obligations pursuant to the MLA Treaty between the UK and the US.
Due to both instruments holding equally valid obligations, the resulting norm conflict could only be resolved by political means. An alternative approach to the original norm conflict was given, suggesting that instead of refusing to seek assurances due to apprehension at a lack of understanding from the White House, it would have been beneficial to the UK to remain steadfast in its request for assurances against the death penalty. Not only is this because fear of a grudge204 isn’t sufficient reason to backtrack on long-standing human rights policies, but also it was likely these requests would likely have been heeded due to the routine nature of the request combined with the political
202 Al-Sadoon (n 95). 203Al Nashiri (n 154).
204 El Gizouli v SSHD (n 3) [17]. 55 pressure placed on the White House by the parents of those executed by Kotey and El
Sheikh.
The norm conflict that still remains consists of the obligation to seek assurances pursuant to Al Nashiri and the pacta sunt servanda obligation of the MLA agreement confirmed by the Home Secretary’s letter. The solution put forward is to seek assurances ex post facto, in order to undo the political damage the decision has caused, allowing for reinstatement of current and future policies that are currently undermined by the decision not to seek assurances. The prosecution of Kotey and El Sheikh is not yet underway, so the request would not hinder any ongoing case, nor would it necessarily prevent any future prosecution as the US has shown that it is capable trying suspects who have been subject to such assurances.
The case of Kotey and El Sheikh, brought by Maha El Gizouli, is currently being to be appealed to the UK Supreme Court. The conclusions reached in this thesis suggest that there is sufficient reason for the Supreme Court to find in favour of the claimant and if this did not occur, it would be reasonable to assume the case could be heard by the ECtHR. It is before the Court that the soundness of the arguments laid out in this thesis would be truly tested.
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